Why Congress's Intervention Predictably Didn't Help the Schindlers:
Putting Federal Judges In an Unfair Pressure Cooker In the Terri Schiavo Case

By EDWARD LAZARUS
Thursday, Mar. 31, 2005

Much has already been written about Congress's emergency intervention into the Terry Schiavo case. Numerous commentators (including FindLaw columnists Elaine Cassel and Michael Dorf) have weighed in. In their articles, they've made arguments for and against the constitutionality of Congress' hastily drafted legislation, known as Terri's Law, which granted Schiavo's parents (the Schindlers) a federal court forum to hear their federal claims without regard to prior state court decisions.

As most of these analysts recognize, the constitutional issues raised by Congress' action are serious and not easily resolved, no matter one's ultimate conclusions.

The law is especially problematic because, with it, Congress did three independently troubling things at the same time. Again, it is highly debatable whether or not these three actions are lawful. But at a minimum, they push the envelope. And combining three dubious actions in a single piece of legislation is, at a minimum, extremely unwise.

First, it passed a retrospective law affecting a single lawsuit - when legislation is supposed to be different from adjudication precisely because it sweeps broadly, and is prospective.

Second, Congress required the federal courts to treat more than a decade of state court litigation, including final judgments in state court actions, as though the state court proceedings had never happened. One need not be an archconservative to wonder if such a move is an assault on constitutional federalism.

Third, Congress impinged on (and perhaps violated) the constitutionally grounded right of patients to refuse extraordinary life-saving medical treatment. That right had been established in the 1990 U.S. Supreme Court case Cruzan v. Missouri Dep't of Health - which involved a patient who, like Terri Schiavo, was in a persistent vegetative state (PVS).

It's important to remember here that state law made Michael Schiavo Terri's guardian; that courts continually validated his guardian status; and that his opinion, as Terri's guardian, was that she would have chosen to refuse the feeding tube. If Michael is right about Terri's wishes - and the law says he is the one with the right to decide what they would have been - then Congress acted to defeat her exercise of an important right.

Yet to talk about the potential constitutional infirmities of Congress's Schiavo legislation is, in my view, to miss a part of the picture. Aside from these three serious problems (and others commentators have also raised), Congress's action was irresponsible and cruel: It was irresponsible because it forced the federal courts into the midst of a highly emotional and divisive political battle, and it was cruel it gave the Schindlers false hope. As I will argue below, there was no real chance that, under the circumstances, the federal courts would have granted the Schindlers the relief they sought.

Public opinion polls show that most people think Congress had no business intervening in the Schiavo matter and considered the mad dash emergency legislation to be an act not of compassion, but of political grandstanding.

Now imagine looking at Congress's actions not as a citizen but as a federal judge - especially, as one of the state judges in Florida, the federal judges on the Court of Appeals for the Eleventh Circuit, or the Supreme Court Justices directly affected by the legislation. Now Congress' action doesn't just look like grandstanding; it looks like passing the buck in the most appalling and unfair of ways.

A Federal Judge's Point of View: Deciding Life and Death on an Emergency Basis

Consider, for instance, the point of view of the federal judge in the Middle District of Florida, where Congress authorized the Schindlers to bring suit. Through a law of dubious constitutionality, Congress put this jurist in the cross-hairs of the most polarized, emotional, and even potentially dangerous moral debate in this country.

Even under the best of circumstances, most judges agonize over cases involving life and death. Thanks to Congress, this federal judge was required on an emergency basis to decide whether Schiavo would live, at least for a while, or die within days. And he was asked to do so under a nearly unprecedented level of publicity; with extraordinary public pressure being applied; and in circumstances under which, whatever he decided, he was certain to be attacked by the losing party (or the similarly-minded) as morally and intellectually bankrupt.

As a practical matter (I'll get to the law later), the federal judge faced two choices:

On one hand, he could choose to grant preliminary injunctive relief and order the feeding tube reinserted. If he did so, the judge would condemn himself to months, if not years, of having his life dominated by the fight over Schiavo's life.

First, he'd have to sort out the constitutionality of Congress's grant of authority to him. Second, if the legislation - which purported to nullify prior state court decisions - was constitutional, in his view, he'd have to reconsider from scratch all the fact issues surrounding both Schiavo's medical condition and her intent with respect to life-extending medical intervention.

Moreover, he'd have to do so knowing (but pretending to ignore) that a Florida state court judge with no apparent bias had already considered that same evidence, and determined --- after more than a decade of painstaking judicial proceedings -- that, in fact, Schiavo was a PVS patient and that she clearly would not have wanted to be kept alive in that condition.

On the other hand, suppose the judge declined to grant an injunction restoring the feeding tube - as in fact occurred. The immediate furor would be intense. But the judge would, at least, have the comfort of knowing that his decision comported with what the state court judge (as affirmed by the Florida appellate courts) conscientiously found to be Schiavo's actual wishes.

The judge would have some confidence, then, that he was probably not violating Terri's constitutional right to refuse medical treatment. And he would be able to bow out of a case that, except for Congress's peculiar intervention, had no business being re-litigated in federal court, after twelve years of highly contested state court litigation.

Congress's Law, In Effect, Guaranteed the Feeding Tube Would Not Be Re-inserted

Faced with this choice, who could blame a federal judge for leaning towards the status quo, and denying the Schindlers an emergency order reinserting the feeding tube?

Sure, Congress had instructed the judge that he could not consider past state court decisions when considering the Schindler's legal claims. But judges are human - and, thus, surely the years of state court litigation would play an important psychological role in the judge's thinking. The judge might well have thought that the considered determination of a number of state judges after careful review of the evidence, would be better than his own snap judgment in the emotional pressure-cooker in which Congress had placed him - and thus, he might have covertly decided to follow that earlier, long-considered judgment by his state court brethren.

Since this is human nature, it ought to have been predictable. So Congress should have been aware, when it passed its legislation, that it probably wouldn't be helping the Schindlers at all. Human nature counseled following the state courts' careful decisions. That's just what he federal judge did - and it was predictable that he would do so.

Predictable, too, was the fact that the Eleventh Circuit Court of Appeals and the U.S. Supreme Court also declined to order the re-insertion of the feeding tube. Doubtless, the lengthy state court litigation was a factor there, as it had been for the federal trial judge. But these courts, and especially the U.S. Supreme Court, were likely also influenced, at least subconsciously, by a philosophical dismay at Congress's actions in putting the federal courts in this inappropriate, unseemly position in the first place.

When Congress Makes the Courts Play Politics, It's Deeply Unfair to the Judges Involved

By and large, federal judges do not like being thrown political footballs. Yet in passing "Terri's Law," that's exactly what Congress did. Without any serious consideration of the legality of what it was doing, in order to score political points, Congress put the federal courts on the hot seat, making them involuntarily accountable for Schiavo's fate.

As the affected federal judges no doubt recognized, this unsought unaccountability had only a downside for their judicial institutions. As the abortion wars have shown, the reputation of the federal courts takes a terrible beating whenever they are called upon to decide profoundly divisive moral and emotional issues.

There is simply no reconciling or mediating between the contending sides on such issues, and thus, the consequence of judicial involvement is inevitably charges of institutional illegitimacy from the losing side. If both sides lose at various times, then resentment of the court system ends up being general and pervasive.

Terri's Law, of course, does not represent the first time that Congress has played the trick of making federal courts pay the reputational price for Congress's political point-scoring. After the Supreme Court struck down Texas' ban on burning the American flag, in Texas v. Johnson, Congress made the Court reiterate this unpopular stand by passing a nearly identical federal anti-flag burning law - even though it knew full well this law, too, would inevitably be struck down.

More recently, after the Court struck down Nebraska's ban on partial birth abortion in Stenberg v. Carhart, Congress passed a similarly unconstitutional federal law -- thus forcing a predictable but nonetheless wrenching re-run of this litigation. That political hot potato is headed back to the Supreme Court soon. But if you don't like the Court's decision - which is a foregone conclusion, don't blame the Court: Blame Congress for forcing the Court into the position where it must take political heat for a constitutional decision.

Federal judges hate this kind of symbolic, politicized legislating. Rightly so: These kind of laws force federal courts to strike down laws that are clearly unconstitutional but enjoy a passionate constituency - and thus to incur political costs for no reason.

One can therefore easily imagine how distressed many of the affected federal judges must have been when Congress decided to federalize the Schiavo case. It only made it worse, I'm sure, that Congress did so through a law with no impact except on this one case, and failed to exercise its own independent duty to think about the constitutionality of its own proposed action.

These considerations, too, weighed strongly against granting an order to reinsert the feeding tube. Absent a really compelling legal case, denying the Schiavo's emergency relief was the quickest and easiest way to extricate the federal courts from a situation in which they never truly belonged and which could only cause institutional harm.

Terri's Law As Much as Said It Was Not Truly Helping Out the Schindlers' Legal Claims

Perhaps all this could have been understandable, if not correct, if one thought Congress was truly helping the Schindlers, who in turn genuinely believe they are helping their daughter. But Congress wasn't actually doing that - as its members must have known. Instead, it was providing what was patently false hope.

It's important to note that Terri's Law explicitly disclaimed the idea that Congress was granting the Schindlers any new substantive rights. It gave the Schindlers a new federal forum to raise any federal claims they might have, and purported to nullify past state court judgments. But that was all it did.

And in the end, that was very little. Neither federal law nor the U.S. Constitution offered the Schindlers any clear avenues for obtaining relief. In saying that, I mean no disrespect to the Schindlers. But these end-of-life issues are, in the main, state law matters.

To gin up a federal claim, the Schindlers were forced to make insubstantial arguments attacking the fairness of the state court proceedings. They also desperately tried to bring Schiavo's situation within the ambit of obviously inapplicable federal statutes, such as the Americans with Disabilities Act.

Some commentators, including this site's Michael Dorf, have suggested that the Schindlers' belated claim that the court order removing the feeding tube violated Schiavo's right to life may have some merit. But, at best, this claim was without precedent and wholly reliant on the disfavored legal doctrine of "substantive due process." (In a past column, I discussed my own stance on this doctrine's weaknesses.)

Truth be told, the Schindlers had almost no chance of success in federal court, given that Schiavo's feeding tube had already been removed. To get an order reversing the status quo, the Schindlers had to show "a substantial likelihood of success on the merits." But their arguments were weak, and the federal judges who heard them were, for the institutional reasons I've cited above, highly disinclined to accept those arguments anyway. Strong arguments might have carried the day anyway; weak arguments were never going to, and thanks to Congress, weak arguments were the only arguments the Schindlers had.

Put another way, to rule for the Schindlers, and direct re-insertion of Terri's feeding tube, the federal courts would have had to bend over backwards. Yet they were disinclined to bend at all, given the unpleasant position Congress had inappropriately placed them in. The bottom line, then, was that the Schindlers' actually making the showing they needed to make, was a near impossibility. And for this reason, Congress' legislation was cruel.

Before Congress intervened, there was more than enough pain in the Schiavo case to last anyone involved a lifetime. In passing Terri's Law, Congress inflicted more of the same on everyone but its own members. Fortunately, however, the same pro-life forces who sought help for Terri have also begun to realize that Congress gave them too little, too late.

Once Terri passes into the next life, one question remaining will be whether Congress will pay a price for making a terrible tragedy that much worse.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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